Oblon's Post-Grant Practice Group handles all aspects of USPTO post issuance proceedings, including practice before the Patent Trial & Appeal Board (PTAB), and appeals to the Court of Appeals for the Federal Circuit (CAFC).

Filing Rate to Strain PTAB Bandwidth?

In the entire 13 year history of inter partes patent reexamination, 1919 such reexamination requests were filed. Granted, only patents that stemmed from post 11/29/99 patent applications were eligible. But still, even in 2012 (the high water mark for such filings) the USPTO received only 530 in total.

Since passage of the America Invents Act (AIA), Inter Partes Review (IPR) and Covered Business Method challenges continue to break records with each passing month. In June alone the Patent Trial & Appeal Board (PTAB) received over 190 IPR and CBM petitions. By September 16 2014, the PTAB will have seen 2000+ petition filings in 24 months.

Can the PTAB keep up with this unprecedented surge in demand?

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As shown in the chart above (accurate through July 2nd), the filing rate has averaged out to about 150 filings (IPR + CBMs) for the past 3 months. This means in 4-6 months time the PTAB will need to issue roughly 150 Trial Orders per month (perhaps as a steady state workload). Furthermore, once these trials approach written decision during the holiday season of 2015, that 150 Trial Orders per month will be in addition to 100+ written decisions, not to mention motion decisions, rehearings, oral hearings, and teleconferences. Of course, anywhere from 10-20% of these disputes may settle — still the increase in PTAB workload over the next few months is quite staggering.

To account for this increased workload, the PTAB continues to bring more judges into the trial section. However, as such judges slowly ramp up it seems inevitable that trial schedules will be pushed out from the current 12 months to the 18 month statutory maximum. That is, unless the filing rate cools, which seems unlikely from where I sit.

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